Privileges and Defenses in Defamation Cases

Learn about the most common legal arguments that might be used to defeat a defamation claim.

A defamatory statement is a false statement of fact that causes injury or damage to someone. But there are a few arguments that, if raised and proven by the defendant, can defeat a defamation claim. In this article, we'll discuss some of the most common defenses and privileges that are used in response to a defamation lawsuit. (For the basics on these kinds of cases, check out all of the articles in Nolo's Defamation, Libel & Slander section.)

Privileges and Defenses in Defamation Cases

Simply because someone defames another person does not mean that a lawsuit will be successful. There are a number of defenses to defamation claims. If the defamer can successfully claim one of these defenses, he/she might be able to win the case despite the defamation.

The major defenses to defamation are:

truth

the allegedly defamatory statement was merely a statement of opinion

consent to the publication of the allegedly defamatory statement

absolute privilege

qualified privilege

retraction of the allegedly defamatory statement.

Let’s look at some of these defenses in a little more detail.

Truth

Truth is an absolute defense to defamation. Remember that defamation is a false statement of fact. So, if the statement was accurate, then by definition it wasn’t defamatory.

Statement of Opinion

Once again, defamation is a false statement of fact. For this reason, a statement of opinion cannot be defamatory. (More: Key Elements of a Defamation Claim.) However, simply because you might phrase a statement as a statement of opinion does not automatically mean that it will be interpreted as a statement of opinion for purposes of defamation law.

Let’s look at an example to see why this is so. Let’s say that you told someone, “I think that Harold beat up his girlfriend last Saturday,” and, as a result, Harold lost his job and most of his friends. You might say that you were only giving your opinion; you didn’t say, “Harold beat up his girlfriend.” You qualified it by saying “I think.” But simply adding “I think” or “I believe” to an otherwise straightforward statement of fact does not necessarily make something a statement of opinion.

In a defamation lawsuit, a jury will be instructed to look at all of the circumstances surrounding the uttering of the defamatory statement, including how well you knew the person defamed, how well you knew the person you said the allegedly defamatory statement to, how precise the allegedly defamatory statement was, and why you made that statement. If, putting it all together, a jury believes that you were really making a specific statement of fact and hiding it as a supposed statement of opinion, you will be found liable for defamation.

Absolute Privilege

Certain types of communications are absolutely privileged. Absolute privilege means that the person making the statement has the absolute right to make that statement at that time, even if it is defamatory. In other words, the person making the defamatory statement is immune from a defamation lawsuit.

So, if someone makes an otherwise defamatory statement during his/her testimony at a trial, that statement is absolutely privileged, and that person cannot be sued for defamation. But if that person makes a different allegedly defamatory statement in the hallway of the courthouse during a break in the trial, he/she could be sued for defamation because the statement was made during a judicial proceeding.

Qualified Privilege

Other types of communications are subject to what is called a qualified privilege, meaning that the person making the allegedly defamatory statement may have had some right to make that statement.

If a qualified privilege applies to a statement, it means that the person suing for defamation must prove that the person who made the defamatory statement acted intentionally, recklessly, or with malice, hatred, spite, ill will or resentment, depending on your state’s law.

Just some of the statements for which a qualified privilege applies are

statements made in governmental reports of official proceedings

statements made by lower government officials such members of town or local boards

citizen testimony during legislative proceedings

statements made in self-defense or to warn others about a harm or danger

certain types of statements made by a former employer to a potential employer regarding the employee, and

published book or film reviews that constitute fair criticism.

The employer review qualified privilege is particularly noteworthy. In order to avoid defamation claims, some employers these days refuse to confirm any details about former employees other than their dates of employment. But certain types of negative statements might fit in under the qualified privilege category, If, for example, the employer fired the employee for theft, a statement about that to a potential employer might qualify as a statement made to warn others about a harm or danger (i.e., the danger of hiring someone who might steal from you).

Retraction Of The Allegedly Defamatory Statement

If the defamer retracts the allegedly defamatory statement, that often will serve as a defense to any defamation lawsuit, especially if the defamer also apologizes. Learn more about Different Types of Defamation.